Previous Governments: To Prosecute or Not to Prosecute?

Eighty-nine-year-old John Demjanjuk was extradited from the United States to Germany, where he will stand trial for allegedly serving as a guard at a Nazi prison camp, thus making him an accessory to the murder of some 29,000 people at the camp.

"Charlotte Knobloch, head of the Central Council of Jews in Germany, told broadcaster ARD, ‘I had been hoping that Demjanjuk would have to stand trial. He deserves to be punished for his crimes during his lifetime. Demjanjuk and all other Nazi criminals still alive should know that for them there is no mercy,’" reports ABC News.

Consider, though, that Demjanjuk’s alleged crimes took place over 63 years ago, under orders from a now-defunct government that had declared the mass murder of Jews and other undesirables not only legal but mandatory. How can anyone possibly prosecute him for such things?

After all, here in the U.S., the country that deported Demjanjuk for prosecution, our previous government is known to have tortured various individuals incarcerated in its prison camps, some of whom died as a result of their mistreatment; yet our current president, while releasing evidence of the preceding administration’s misdeeds, proclaims that "[t]his is a time for reflection, not retribution," and that "nothing will be gained by spending our time and energy laying blame for the past." In other words, let bygones be bygones; no one will be prosecuted. (Besides, if you’re president and want to make sure you can get away with crimes, what better way is there than to give your predecessor, especially one of the opposition party, a free pass?)

Meanwhile, his opponent in the last election, Sen. John McCain, agrees that it is time "to move forward" rather than "settling old political scores." The government employees who engaged in torture were just following "bad legal advice," he said, and "are you going to prosecute people for giving bad legal advice?"

Liz Cheney, daughter of former vice president Dick Cheney, adds that since there were "legal memos" detailing what was torture and what was not, as long as the government stayed within the bounds of what some of its attorneys had declared legal, it wasn’t torturing anyone. Try that on a judge next time you get a speeding ticket: "My lawyer told me it was okay to go 80 in a 55 MPH zone, so therefore I shouldn’t have to pay this fine."

David Broder, ever-reliable defender of state power in the ever-reliable Pravda-on-the-Potomac (the Washington Post), defends Obama’s decision not to prosecute, or even mildly investigate, the Bush administration’s known crimes:

He was right to do this [issue an executive order banning torture that, by the way, isn’t all it’s cracked up to be]. But he was just as right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government. And he was right, when he sent out his chief of staff, Rahm Emanuel, to declare that the same amnesty should apply to the lawyers and bureaucrats who devised and justified the Bush administration practices. . . .

The torture memos represented a deliberate, and internally well-debated, policy decision, made in the proper places — the White House, the intelligence agencies and the Justice Department — by the proper officials.

One administration later, a different group of individuals occupying the same offices have — thankfully — made the opposite decision. Do they now go back and investigate or indict their predecessors?

That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness — and injustice.

The Pittsburgh Post-Gazette‘s David Shribman simply says, "Here presidents and parties do not criminalize the policies of their predecessors." He then goes on to cite numerous criminal actions by past chief executives that were overlooked by their successors, as if the mere fact that previous presidents have (literally) gotten away with murder implies that all future presidents should be given automatic immunity from prosecution for any and all crimes they may commit in office.

Not surprisingly, Karl Rove, with the eager assent of Sean Hannity, concurs: "Is that what we’ve come to in this country, that if we have a change of administration from one party to another that we then use the tools of the government to go systematically after the policy disagreements we have with the previous administration?"

Note to Messrs. Broder, Shribman, and Rove: A "policy disagreement" is whether or not to allow snowmobiling in Yellowstone National Park. It is not whether or not to violate the U.S. Constitution, first by entering into a war without Congress’s declaring it (Article I, Section 8) and then by inflicting "cruel and unusual punishments" (Amendment 8) upon prisoners of that war, and the Geneva Conventions, to which the U.S. is a signatory and which thus are "the supreme Law of the Land" (Article VI).

I have no idea whether Demjanjuk is guilty as charged. I do know that high-level members of the Bush administration desired to employ "enhanced interrogation techniques" on prisoners of war and set about constructing a legal rationale for doing so in advance — a legal rationale that relied solely on the president’s alleged powers as commander-in-chief to ignore the Constitution, the Geneva Conventions, other relevant statutes, and just plain common decency — that Scott Horton of Harper’s rightly describes as "a roadmap to committing crimes and getting away with it."

Unfortunately for Demjanjuk, he allegedly committed his crimes at the behest of a government that is, as it should be, reviled around the world as one of the worst regimes in history; and thus he stands trial for assisting in the heinous acts against persons of Middle Eastern descent that his government had declared were perfectly legal. Had he actually participated in the torture, even to the point of murder, of persons of Middle Eastern descent in the service of the U.S. government, or had he been part of the administration that sought to do so and then came up with convoluted legal briefs to support that policy, he would be a free man today. Neoconservatives would laud him as a great hero and defender of freedom. The politicians and chattering classes would agree that while it was good that the succeeding administration "kinda sorta" reversed those nasty policies, Demjanjuk and his ilk should not be prosecuted or even investigated for their criminal acts because they were mere "policy differences" based on "bad legal advice" — things that we in polite society "do not criminalize." As the president would say, what is there to gain "by spending our time and energy laying blame for the past"?

Either the charges against Demjanjuk should be dropped immediately or the investigation and prosecution of the Bush administration should begin. Either crimes by previous governments are fair game for prosecution or they aren’t.

Let the prosecution of the Bush regime commence. While we’re at it, let’s investigate all surviving members of previous administrations, every one of which committed countless affronts to both our laws and God’s, and the legislators and others who enabled them (yes, that means you, Nancy Pelosi). If we’re lucky, some justice will actually be served. At the very least it will keep the government so busy — and current officeholders so afraid to act — that it won’t have time to do us any harm.